Regulating litigation under the Protection of Lawful Commerce in Arms Act: economic activity or regulatory nullity?

The Protection of Lawful Commerce in Arms Act (PLCAA) limits the types of civil actions that can be brought against firearm manufacturers. (1) In particular, the PLCAA bars plaintiffs from suing firearm manufacturers for the negligent or criminal misuse of guns by third parties. (2) It also requires pending lawsuits involving such misuse to be dismissed. (3) In enacting the PLCAA, Congress relied primarily on its commerce powers. (4) This Article examines whether such reliance is warranted in light of the Supreme Court's modern Commerce Clause jurisprudence.

The Supreme Court's modern Commerce Clause jurisprudence begins with United States v. Lopez (5) and United States v. Morrison. (6) In this pair of cases, the Court invalidated two federal statutes on grounds that they exceeded Congress's regulatory authority under the Commerce Clause. (7) In making this determination, the Court found the distinction between the regulation of economic and non-economic activity to be of central importance. (8) Since the Court found neither gender-motivated crimes of violence (i.e., rape) nor gun possession in a school zone to constitute an economic activity, it concluded that Congress could not draw upon its Commerce Clause powers to effect their regulation. (9)

Despite the Court's heavy focus on economic activities in Lopez and Morrison, it has done remarkably little in defining what, precisely, economic activities are. (10) In fact, the Court's repeated failure to define the term "economic activity" has led more than one commentator to lament: "the standards articulated in Lopez and Morrison ... are unworkable.... [and] will inevitably lead to the kind of ad hoc review that characterized obscenity law in the 1960s and 1970s." (11) However, because the characterization of something as an economic or non-economic activity is of central importance to the Court's modern Commerce Clause analysis, (12) this Article will attempt to construct a coherent framework through which to define this significant, albeit elusive, term.

Part II of this Article provides an overview of the PLCAA, summarizing the Act's key provisions and providing examples of the types of civil actions that it is intended to bar. Part III summarizes the Supreme Court's Commerce Clause jurisprudence, with special emphasis on the modern cases: Lopez, Morrison, and more recently, Gonzales v. Raich. (13) Part IV of this Article addresses the key issue by drawing upon precedents, works of scholars, as well as principles from related bodies of law. Part IV examines the various ways that the term "economic activity" has been defined and assesses whether civil litigation of the type regulated by the PLCAA falls within the scope of any of the proposed definitions. (14) Part IV ultimately concludes that PLCAA-regulated litigation does not constitute an economic activity. Congress' enactment of the Act, therefore, fell beyond its Commerce Clause powers.

THE STATUTE: PROTECTION OF LAWFUL COMMERCE IN ARMS ACT

The PLCAA was initially introduced in the 107th Congress as House Resolution (H.R.) 2037. (15) Before Congress could take formal action on the bill, a series of sniper attacks besieged the Washington, DC area. (16) In the aftermath of those attacks, Congress abandoned H.R. 2037, and it died in the House Judiciary Committee. (17) The spirit underlying the PLCAA, however, remained far from forgotten, and Senator Larry E. Craig revitalized the Act in the 109th Congress through Senate Bill 397. (18) This time, the PLCAA passed the Senate by a vote of 65-31 and the House by a vote of 283-144. (19) President Bush signed the PLCAA into law on October 26, 2005. (20)

The PLCAA is designed to limit the types of civil actions that can be brought against manufacturers of firearms. (21) Section 7902 of the Act provides:

(a) In general

A qualified civil liability action may not be brought in any

Federal or State court.

(b) Dismissal of pending actions

A qualified civil liability action that is pending on October 26, 2005, shall be immediately dismissed by the court in which the action was brought or is currently pending. (22)

The phrase "qualified civil liability action" is defined broadly by the Act. It includes:

[Any] civil action or proceeding ... brought by any person against a manufacturer or seller of a qualified product [i.e., firearm, ammunition, "or a component part of a firearm or ammunition, that has been shipped or transported in interstate or foreign commerce" (23)] for damages, punitive damages, injunctive or declaratory relief, abatement, restitution, fines, or penalties, or other relief, resulting from the criminal or unlawful misuse of a qualified product by the person or a third party. (24) In practice, the PLCAA is aimed at barring two types of civil actions. First, the Act bars actions brought by individual plaintiffs for injuries caused to them by the negligent or criminal misuse of firearms by third parties. (25) Ileto v. Glock Inc. represents such an action. (26) In Ileto, Buford Furrow, a convicted felon, illegally purchased an arsenal of firearms from the secondary market and used the firearms to shoot six people, injuring five and killing one. (27) Victims and family members sued the firearm manufacturer, Glock, under theories of negligent marketing and public nuisance. (28) Glock moved for dismissal, claiming that it could not be held liable for the criminal acts of Furrow, for two reasons. (29) First, as a manufacturer, Glock owed no duty of care to the third-party victims of Furrow's firearm misuse; (30) second, Furrow's criminal firearm misuse constituted a superseding cause of the victims' injuries for which Glock could not be held responsible. (31) The Ninth Circuit rejected both of Glock's arguments and allowed plaintiffs' action to proceed. (32) The enactment of the PLCAA throws the precedential value of Ileto into considerable doubt.

The PLCAA also bars civil actions brought by municipality plaintiffs for the reimbursement of costs incurred as a result of responding to gun-related violence within their borders. (33) For example, in White v. Smith & Wesson, the City of Cleveland filed an action against more than thirteen firearm manufacturers under theories of negligent marketing, products liability, and public nuisance. (34) The City sought to recover the extra costs it had incurred in responding to firearm incidents, such as the costs of "enhanced police protection, emergency services, police pension benefits, court and jail costs, and medical care." (35) Notwithstanding the manufacturers' argument that the City's lawsuit violated principles of public policy and standing, (36) the District Court for the Northern District of Ohio allowed the case to go forward. (37) Relatedly, in Penelas v. Arms Technology, Inc., Miami-Dade County sued twenty-six firearm manufacturers for injunctive relief. (38) There, the County sought an injunction to compel the defendant manufacturers to: (i) implement "life-saving features" into their firearm devices; and (ii) modify their methods of distribution and marketing. (39) The trial court in Penelas dismissed the County's action and the Florida District Court of Appeal affirmed. (40) According to the appellate court, the County's action constituted nothing more than "an attempt to regulate firearms ... through the medium of the judiciary" and as a result, violated the separation of powers principle of the state and federal consitutions. (41)

Although a number of courts have permitted municipality actions seeking the reimbursement of costs to move forward, all courts, to date, have refused to hear similar claims for injunctive relief. (42) The PLCAA draws no distinction between these two categories of cases but effectively writes them both out of existence. (43)

CONSTITUTIONAL MANDATE: THE COMMERCE CLAUSE

There are three paradigmatic principles of constitutional law that are relevant to the analysis presented in this Article. First, the federal government is a government of limited, enumerated powers. (44) Second, powers not given to the federal government are reserved to the states. (45) Third, "the ordinary administration of criminal and civil justice" is a power left to the states, to be exercised by the states with minimal federal intervention. (46) These three principles, taken together, raise a substantial question about Congress's authority to enact the PLCAA: if the federal government is indeed a government of limited, enumerated powers, from where does it derive its authority to regulate civil litigation--an activity that, by its very nature, is an "ordinary administration of ... civil justice"? (47) The answer, not surprisingly, is found in the Commerce Clause of Article I. (48)

The Commerce Clause in a Historical Context

Article I, Section 8 of the Constitution authorizes Congress "[t]o regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes." (49) In Gibbons v. Ogden, Chief Justice Marshall glossed the Commerce Clause with a broad interpretation, holding that it conferred upon Congress the power to regulate "commercial intercourse" that "concern[ed] more States than one." (50) This regulatory power did not end at the states' jurisdictional borders but could be exercised therein. (51) According to Marshall, Congress's power under the Commerce Clause was, essentially, "complete in itself, may be exercised to its utmost extent, and acknowledges no limitations, other than are prescribed in the constitution." (52)

Initially, Marshall's broad view of the Commerce Clause represented a road not taken. For at the turn of the century, the Court began to strictly limit Congress's ability to regulate activities of a primarily intrastate nature. (53) In Hammer v. Dagenhart, the Court invalidated a federal statute that prohibited the transportation of goods produced at factories employing child labor. (54) In so doing, the Court found a...